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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
NRS Enterprises, Inc. ) File No. EB-02-AT-329
Owner of unregistered Antenna Structure located at )
35° 20' 36'' North Latitude by 86° 12' 00'' West )
NAL/Acct. No. 200332480004
Longitude in Tullahoma, Tennessee )
) FRN 0000-0394-46
FORFEITURE ORDER
Adopted: March 25, 2004 Released: March 29, 2004
By the Chief, Enforcement Bureau:
I. INTRODUCTION
1. In this Forfeiture Order
(``Order''), we issue a monetary
forfeiture in the amount of three
thousand dollars ($3,000) to NRS
Enterprises, Inc. (``NRS''),
licensee of AM broadcast station
WJIG, Tullahoma, Tennessee, for
willful and repeated violations
of Section 17.4 (a) of the
Commission's Rules (``Rules'').1
The noted violation involves
NRS's failure to register its
antenna structure.
2. On November 5, 2002, the
Commission's Atlanta, Georgia,
Field Office (``Atlanta Office'')
issued a Notice of Apparent
Liability for Forfeiture
(``NAL'') to NRS for a forfeiture
in the amount of three thousand
dollars ($3,000).2 NRS filed its
response to the NAL on December
5, 2002.
II. BACKGROUND
3. On April 7, 1999, an agent
from the Atlanta Office inspected
WJIG's antenna structure, which
NRS owns. The agent determined
by checking the Commission's
Antenna Structure Registration
(``ASR'') data base that the
tower was unregistered. On April
9, 1999, the Atlanta office
issued a Notice of Violation
(``NOV'') to NRS for having an
unregistered tower. In response
to the NOV, NRS stated that it
had submitted an antenna
structure registration form and
would display the registration
number near the tower.
4. On July 29, 2002, the Atlanta
Office received a report
indicating that WJIG's antenna
structure was not illuminated.
An agent at the Atlanta Office
checked the ASR data base and
determined that there was no
registered antenna structure
within two miles of the location
of WJIG's tower -- 35° 20' 36''
North Latitude by 86° 12' 00''
West Latitude.
5. On August 25, 2002, an agent
from the Atlanta Office again
inspected WJIG's antenna
structure. The agent found that
the tower lighting was in
operation but station personnel
could not produce an antenna
structure registration
certificate. On September 27,
2002, the Atlanta Office received
by facsimile a copy of the
registration form which NRS said
it sent to the FCC in April 1999.
6. On November 5, 2002, an agent
at the Atlanta Office again
checked the Commission's ASR data
base and found that WJIG's tower
was unregistered.
7. On November 5, 2002, the
Atlanta Office issued a NAL for a
forfeiture in the amount of
$3,000 to NRS for willful and
repeated violation of Section
17.4(a) of the Rules. NRS
responded to the NAL on December
5, 2002, seeking cancellation or
reduction of the proposed
monetary forfeiture. NRS states
that the general manager who
submitted the response to the NOV
in 1999 resigned during 2001 and
that NRS is unable to determine
why it did not complete the
registration of WJIG's tower but
finds it ``difficult to accept''
that the failure to register
WJIG's tower was willful. NRS
further states that its current
management took steps to register
the tower as soon as it became
aware of the problem and that the
antenna structure is now
registered. However, NRS does
not provide a registration
number. Finally, NRS states that
it is a not for profit
organization and that payment of
the proposed forfeiture would
``have a dramatic impact on the
operation funds for the
station.'' To support its
financial hardship claim, NRS
provides copies of its 1999, 2000
and 2001 federal income tax
returns as well as profit and
loss statements covering a three
year period.
III. DISCUSSION
8. The proposed forfeiture amount
in this case was assessed in
accordance with Section 503(b) of
the Communications Act of 1934,
as amended (``Act''),3 Section
1.80 of the Rules,4 and The
Commission's Forfeiture Policy
Statement and Amendment of
Section 1.80 of the Rules to
Incorporate the Forfeiture
Guidelines, 12 FCC Rcd 17087
(1997), recon. denied, 15 FCC Rcd
303 (1999) (``Policy
Statement''). Section 503(b) of
the Act requires that, in
examining NRS's response, the
Commission take into account the
nature, circumstances, extent and
gravity of the violation and,
with respect to the violator, the
degree of culpability, any
history of prior offenses,
ability to pay, and other such
matters as justice may require.5
9. Section 17.4(a) of the Rules
required the owners of existing
antenna structures that were
assigned painting or lighting
requirements before July 1, 1996,
to register those antenna
structures no later than July 1,
1998. WJIG's tower was subject
to this requirement.6 On the
basis of the FCC investigation
and NRS's response, we find that
NRS violated Section 17.4(a) by
failing to register its antenna
structure. Despite NRS's claim
that it registered WJIG's tower,
the Commission's ASR data base
indicates that, as of the
adoption date of this order,
WJIG's tower remains
unregistered.7 In view of the
continuation of the violation of
Section 17.4(a) after the
issuance of an NOV,8 we conclude
that it was willful9 and
repeated.10
10. In support of its financial
hardship claim, NRS submits
copies of its 1999, 2000 and 2001
federal income tax returns and
profit and loss statements
covering a three year period.
The Commission has determined
that, in general, a licensee's
gross revenues are the best
indicator of its ability to pay a
forfeiture.11 After reviewing
the financial data submitted, we
find that the monetary forfeiture
amount should not be reduced on
the basis of financial hardship.
12
11. We have examined NRS's
response to the NAL pursuant to
the statutory factors above, and
in conjunction with the Policy
Statement as well. As a result
of our review, we conclude that
NRS willfully and repeatedly
violated Section 17.4 (a) of the
Rules. We find that there is no
basis for cancellation or
reduction of the proposed
monetary forfeiture.
12. Because WJIG's antenna
structure remains unregistered as
of the adoption date of this
order, we will require, pursuant
to Section 308(b) of the Act,13
that NRS report to the
Enforcement Bureau within thirty
(30) days of the release of this
Order whether it has achieved
compliance with Section 17.4(a)
of the Rules. If the report
indicates that NRS has registered
WJIG's antenna structure, NRS
must provide the registration
number. NRS's report must be
submitted in the form of an
affidavit signed by an officer or
director of the licensee. If NRS
fails to submit such a report or
we find that NRS has not come
into compliance with Section
17.4(a), we will consider further
appropriate enforcement action.
IV. ORDERING CLAUSES
13. Accordingly, IT IS ORDERED
that, pursuant to Section 503(b)
of the Act, and Sections 0.111,
0.311 and 1.80(f)(4) of the
Rules,14 NRS IS LIABLE FOR A
MONETARY FORFEITURE in the amount
of three thousand dollars
($3,000) for willful and repeated
violation of Section 17.4(a) of
the Rules.
14. IT IS ALSO ORDERED that,
pursuant Section 308(b) of the
Act, NRS must submit the report
described in Paragraph 12, above,
within 30 days from the release
of this Order, to: Federal
Communications Commission,
Enforcement Bureau, Spectrum
Enforcement Division, 445 12th
Street, S.W., Room 7-A 820,
Washington, D.C. 20554,
Attention: Thomas D. Fitz-
Gibbon.
15. Payment of the forfeiture
shall be made in the manner
provided for in Section 1.80 of
the Rules within 30 days of the
release of this Order. If the
forfeiture is not paid within the
period specified, the case may be
referred to the Department of
Justice for collection pursuant
to Section 504(a) of the Act.15
Payment may be made by mailing a
check or similar instrument,
payable to the order of the
Federal Communications
Commission, to the Federal
Communications Commission, P.O.
Box 73482, Chicago, Illinois
60673-7482. The payment should
reference NAL/Acct. No.
200332480004 and FRN 0000-0394-
46. Requests for full payment
under an installment plan should
be sent to: Chief, Revenue and
Receivables Group, 445 12th
Street, S.W., Washington, D.C.
20554.16
16. IT IS FURTHER ORDERED that
copies of this Order shall be
sent by Certified Mail Return
Receipt Requested and by First
Class Mail to NRS Enterprises,
Inc., 607 E. Carroll Street,
Tullahoma, Tennessee 37388.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4 (a).
2 Notice of Apparent Liability for Forfeiture, NAL/Acct. No.
200332480004 (Enf. Bur., Atlanta Office, released November 5,
2002).
3 47 U.S.C. § 503(b).
4 47 C.F.R. § 1.80.
5 47 U.S.C. § 503(b)(2)(D).
6 The Commission's TOWPUB tower data base indicates that
WJIG's tower was assigned painting or lighting requirements
before July 1, 1996.
7 Even had NRS taken remedial measures to correct the
registration violation, no mitigation would be warranted on that
basis. The Commission stated in Seawest Yacht Brokers, 9 FCC Rcd
6099, 6099 (1994), ``corrective action taken to come into
compliance with Commission rules or policy is expected, and does
not nullify or mitigate any prior forfeitures or violations.''
See also Callais Cablevision, Inc., 17 FCC Rcd 22626, 22629
(2002); Radio Station KGVL, Inc., 42 FCC 2d 258, 259 (1973); and
Executive Broadcasting Corp., 3 FCC 2d 699, 700 (1966).
8 Although NRS no longer employs the general manager who was
in charge at the time of the issuance of the NOV, NRS is
responsible for his actions. ``[T]he Commission has long held
that licensees and other Commission regulatees are responsible
for the acts and omissions of their employees and independent
contractors and has consistently refused to excuse licensees from
forfeiture penalties where actions of employees or independent
contractors have resulted in violations.'' Eure Family Limited
Partnership, 17 FCC Rcd 21861, 21863-64 (2002) (internal
quotation marks omitted) and cases cited therein.
9 Section 312(f)(1) of the Act, 47 U.S.C. § 312(f)(1), which
applies to violations for which forfeitures are assessed under
Section 503(b) of the Act, provides that ``[t]he term `willful,'
... means the conscious and deliberate commission or omission of
such act, irrespective of any intent to violate any provision of
this Act or any rule or regulation of the Commission authorized
by this Act ....'' See Southern California Broadcasting Co., 6
FCC Rcd 4387 (1991).
10 As provided by 47 U.S.C. § 312(f)(2), a continuous
violation is ``repeated'' if it continues for more than one day.
The Conference Report for Section 312(f)(2) indicates that
Congress intended to apply this definition to Section 503 of the
Act as well as Section 312. See H.R. Rep. 97th Cong. 2d Sess. 51
(1982). See Southern California Broadcasting Company, 6 FCC Rcd
4387, 4388 (1991) and Western Wireless Corporation, 18 FCC Rcd
10319 at fn. 56 (2003).
11 See PJB Communications of Virginia, Inc., 7 FCC Rcd 2088,
2089 (1992).
12 Id. at 2089 (forfeiture not deemed excessive where it
represented approximately 2.02 percent of the violator's gross
revenues); Hoosier Broadcasting Corporation, 15 FCC Rcd 8640,
8641 (Enf. Bur. 2002) (forfeiture not deemed excessive where it
represented approximately 7.6 percent of the violator's gross
revenues); Afton Communications Corp., 7 FCC Rcd 6741 (Com. Car.
Bur. 1992) (forfeiture not deemed excessive where it represented
approximately 3.9 percent of the violator's gross revenues).
13 47 U.S.C. § 308(b)
14 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
15 47 U.S.C. § 504(a).
16 See 47 C.F.R. § 1.1914.